Justice Fixer Stemler Retires as Top Criminal Appellate Attorney

Justice Department prosecutors with a knotty criminal law question or senior officials needing to sort out a high-profile litigation mess, have usually turned to the same fixer for decades.

That discreet and publicity-shy problem solver, Patty Stemler, retired Monday from a 30-year reign as DOJ’s top criminal appellate attorney. Colleagues say she’s built the appellate section into an elite unit consulted at every step of critical litigation and wading into some of the DOJ’s most delicate cases.

“I hate to overuse the word—but, transformative,” said U.S. Circuit Court Judge William Bryson of Stemler’s contributions to the department.

Stemler, who arrived at the Justice Department in 1976 directly after graduating from University of Pittsburgh’s law school, got promoted to run the appellate section by then-Criminal Division chief Robert Mueller in 1992. One of her initial assignments was to take over an appeal involving convicted Nazi war criminal John Demjanjuk.

New evidence, allegedly withheld by DOJ prosecutors, suggested the Ukrainian-American had been misidentified as the gas chamber operator known as Ivan the Terrible. Stemler led the government’s effort to extradite Demjanjuk on the basis that he was still a high-level Nazi guard responsible for the genocide of European Jews.

“That was her first gift as being section chief,” said Bob Erickson, who was Stemler’s deputy at the time. “It was a real heavy lift to do that and be section chief at the same time, but Patty managed both.”

‘Go-To Person’

The Demjanjuk affair led to her getting dispatched time and again to clean up thorny legal matters.

Her assignments included determining the effect on active litigation from a 2015 Supreme Court ruling invalidating part of a felony firearms possession law and handling the fallout when it was learned a federal judge had been issuing decisions while senile.

She also consulted on a contempt proceeding against a spokesman to special counsel Kenneth Starr who’d leaked information about the investigation into former President Bill Clinton and weighed whether classified information could be used in the trials of 9/11 terrorists.

“She became the go-to person when the Department had a really hard problem in a trial court or appellate court involving a highly sensitive criminal law issue,” said Michael Dreeben, who worked closely with Stemler during his lengthy career as deputy solicitor general on criminal cases. “No matter how disruptive it was of her own work and how big the task, she would dig in and meet the challenge.”

Handling sensitive cases came with a cost.

Stemler couldn’t prevent the appellate court from reversing Demjanjuk’s extradition, returning him to the U.S. in 1993. He was denaturalized a second time years later.

In 2009, she was part of a team of four DOJ lawyers held in contempt by a federal judge for failing to turn over documents to attorneys for the late Sen. Ted Stevens (R-Alaska), whose ethics conviction would eventually be overturned.

After U.S. District Judge Emmet Sullivan initially held the three primary prosecutors in contempt, he asked if anyone else was responsible. Stemler stood up in the courtroom audience to share that she’d signed a brief, earning contempt as well.

Sullivan lifted that finding against her the following year.

‘What Does Patty Think?’

Despite her involvement in momentous cases, Stemler rarely received press attention and preferred it that way.

She’s known as very private and tries to stay out of the limelight, her longtime colleagues said. Through a DOJ spokesman, Stemler declined an interview request.

Stemler has, however, been more open to internal requests for advice—whether from the highest-ranking officials or newly-hired line attorneys.

“She never said no to anyone,” recalled Liza Collery, who retired in 2019 as an appellate section trial attorney. “How she got it all done I don’t know.”

When Stemler’s current boss, Criminal Division chief Kenneth Polite, informed staff of the upcoming retirement, he observed that across the department, “a daily refrain is, ‘What does Patty think?'—with attorneys far and wide reluctant to move forward on a complex issue without getting her input and guidance,” according to a copy of the email obtained by Bloomberg Law.

Polite’s message noted that Stemler is not fully exiting DOJ just yet. The department has convinced her to stay on “in a new capacity for several months, perhaps even a year if we are lucky,” he wrote.

Stemler’s new title is senior counsel, with her previous deputy, Joseph Wyderko, assuming the acting appellate section chief role, according to a department spokesman.

Increased Clout

The appellate section’s mandate is sweeping, although many of its briefs or recommendations on whether to appeal are subject to rewrites and reconsideration by DOJ’s Office of the Solicitor General.

Dreeben, now a partner at O’Melveny and Myers, said he developed a friendship with Stemler through their years of tough deliberations. They didn’t always agree, but would sometimes change each other’s minds.

“I had much more of an eye on how a position would land in the Supreme Court. And she had an eye on that, too, but was a determined advocate for the U.S. attorney’s offices,” Dreeben added.

The sway Stemler had on the SG’s office wasn’t always a given. Bryson recalled when he ran the appellate section before joining the bench, those drafts “would be largely rewritten in the Solicitor General’s office, often without significant consultation in the appellate section.”

Judge Bryson said he’s been told by current DOJ attorneys that the drafts are now “regarded as very valuable.”

Today the section attracts candidates with prior experience in elite clerkships and higher-paying Big Law jobs, leading alums to express confidence in the office’s ability to survive without Stemler.

“A lot of us, and I would include myself in this list, come and go to-and-from Justice,” said Bryson, who was Stemler’s boss in her early years as a DOJ trial attorney. “Most of us don’t leave the place very different from where it was when we arrived. She’s one of the very few exceptions to that.”