June 12 (UPI) -- An attorney for former national security adviser Michael Flynn asked a three-judge appellate panel on Friday to intervene and order a lower court to dismiss the case, as the Justice Department has requested.
The court, however, was hesitant to do so.
Flynn, during prosecution as part of the department's Russia inquiry, had initially pleaded guilty to charges he lied to investigators but later retracted the plea. The department then asked last month, in a rare move, that his case be dismissed.
On Wednesday, an arbiter in the case said in a court brief the department had abused its power in asking for Flynn's case to be dismissed.
At Friday's hearing, Flynn attorney Sidney Powell asked the panel to dismiss the case -- arguing that the lower court jurist overseeing the case, U.S. District Court Judge Emmet Sullivan, doesn't have the authority to do it.
"The government has quit and it's time to leave the field," Powell said. "The toll it takes on a defendant to go through this is absolutely enormous."
Sullivan delayed the dismissal last month and appointed the arbiter to make an opposing argument to weigh the legality of the Justice Department's request.
The arbiter, retired federal judge John Gleeson, said Flynn should be sentenced for perjury since he formally entered a guilty plea.
Appearing at least somewhat skeptical at Friday's arguments, the judges noted that the case will have a hearing with Sullivan next month.
"If Judge Sullivan had just kept this motion waiting and languishing, that's one thing," judge Karen Henderson told Powell Friday. "But he has set a hearing for mid-July. For all we know, by the end of July he will have granted the motion.
"You also know courts have said he's not a 'mere rubber stamp' either. There's nothing wrong with him holding a hearing -- there's no authority I know of that says he can't hold a hearing."
Flynn's next hearing before Sullivan is scheduled for July 16.