The US justice department has demanded that a federal judge restore its access to documents seized from Donald Trump’s Mar-a-Lago resort that carried classification markings, saying that if not, it would appeal to a higher court. The demands came in a three-page notice of appeal filed by the justice department on Thursday in the case involving Trump’s request for a so-called special master, and paves the way for the government to submit a detailed appeals brief to the US court of appeals for the 11th circuit. But the justice department indicated in a motion for a stay that it would not appeal the decision, if the order for a special master to review classified materials that stopped the investigation into Trump’s unauthorised retention of government secrets was reversed. The filings amounted to a forceful if clever response against the decision by the judge – a Trump appointee – to give unusually deferential treatment to Trump on account of his status as a former president. The justice department focused on the classified documents in its motion to stay the order barring it from reviewing the seized materials, arguing that Trump did not have “possessory interest” for the records – the key legal standard at issue – and were themselves the subject of the investigation. Even if Trump attempted to make an executive privilege argument to set aside the classified documents from the evidence cache, the government argued, he could not say that he had a “possessory interest” for classified documents that belonged to the state. The justice department also said in its motion to stay that although Cannon had ostensibly allowed the ODNI risk assessment to continue, by enjoining the government from examining the seized materials until the appointment of a special master, it caused that assessment to stop. As part of the risk assessment, the filing suggested, the ODNI was reviewing the seized classified documents with the intelligence community, which includes the FBI. But with the FBI also being part of the justice department, the intelligence community was unsure how to continue its review. The FBI seized from Mar-a-Lago around 11,000 documents and 48 empty folders with classified markings. The risk assessment into the empty folders, for instance, was to be completed by the FBI – but Cannon’s order threw that review into limbo, the justice department said. Additionally, barring the FBI from using the classified documents “could impede efforts to identify the existence of any additional classified records that are not being properly stored”, prosecutors wrote – the first suggestion that more classified material might be unaccounted for. The justice department also reiterated that they had already sorted through the seized materials using its own so-called “filter team” to separate around 520 pages of documents potentially covered by attorney-client privilege. Trump’s legal team argued last week in federal court in West Palm Beach, Florida, the “filter teams” were inadequate – with which Cannon agreed – and that a special master is needed because the FBI seized some materials protected by executive or attorney-client privilege. The precise nature of the justice department’s appeal was not certain on Thursday – the government filed only the notice of appeal. A spokesman for the justice department did not immediately respond to a request for comment. But senior officials at the justice department mulled for days about how to respond to Cannon’s ruling, according to sources familiar with the matter, and considered several options ranging from not appealing at all, appealing the decision in part, to seeking the reversal of the entire order. The ruling in essence presented the justice department with a dilemma: not appeal the ruling and accept a delay to the investigation, or appeal with the knowledge that a loss would create new precedent for a potentially dangerous interpretation of post-presidential power. While the justice department believed that the appellate court precedent concerning Fourth amendment motions, like the one submitted by Trump, cut against the former president, the 11th circuit in Atlanta is majority conservative with six of the judges appointed by Trump.