Justice Department Appeals Parts of Judge’s Ruling on Documents Seized at Trump’s Mar-a-Lago

Late Thursday, U.S. District Judge Aileen Cannon appointed a former chief federal judge to independently review the documents. But over the objection of prosecutors, she included the roughly 100 documents marked classified that were recovered in the search and ordered the Justice Department to provide Mr. Trump’s legal team with access to those materials.

FBI agents searched Mr. Trump’s sprawling Florida resort on Aug. 8 and removed 33 boxes with thousands of presidential records and news clippings mixed with classified materials. Afterward, prosecutors said they were investigating, among other issues, potential violations of the Espionage Act, which relates to the misuse of classified information.

Prosecutors had argued that Mr. Trump had no right to those sensitive national security documents, and some legal experts said the order to share the classified documents with Mr. Trump’s team was unprecedented.

“There are considerations that would weigh in favor of Trump’s lawyers not being able to have access to these documents,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “There’s national security concerns on the table here, and Trump himself seemingly had access for 18 months to these documents. Why they suddenly need access now makes very little sense to me.”

Mr. Trump’s legal team has disputed the status of the documents marked as classified.

“The government has not proven these records remain classified. That issue is to be determined later,” Mr. Trump’s lawyers wrote in a Monday filing to Judge Cannon.

Mr. Trump has called the Aug. 8 search prosecutorial misconduct and an attempt to keep him from running for president in 2024.

Lawyers whose clients have been charged with crimes related to classified information have been allowed to view those highly sensitive documents in order to prepare for a defense, experts said. But prosecutors have filed no such charges in relation to the FBI search.

“This is not a criminal case, this is an investigation,” said Stephen A. Saltzburg, a former Justice Department official and law professor at George Washington University. Mr. Saltzburg, who served as associate independent counsel in the Iran-Contra probe in the 1980s, noted that Retired Lt. Col.

Oliver North’s

attorneys were granted access to classified documents in order to prepare his defense on charges emanating from that scandal.

“The judge’s ruling is extraordinarily unusual,” Mr. Saltzburg said.

When the Florida-based Judge Cannon ordered the appointment of an independent arbiter last week, she had temporarily blocked criminal investigators from using the materials, describing it as “a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”

Days later, prosecutors asked Judge Cannon to revisit that pause specifically as it related to the 100 classified documents at the heart of the probe, arguing that Mr. Trump had no basis to claim attorney-client or executive privileges over those documents. They said they would set aside the other roughly 11,000 documents seized and provide Mr. Trump with copies of them, but said that if the judge didn’t grant their request to resume reviewing the classified documents by Sept. 15, they would go to the appeals court with the same request.

Legal experts also said at the time the prospect of having someone outside government—rather than the executive branch itself—help determine what could be covered by executive privilege was legally flawed.

In denying the government’s request, Judge Cannon said she found the Justice Department’s request premature and didn’t want to accept on its face the government’s premise that the 100 documents are classified government records, and that Mr. Trump had no plausible claim of privilege as to any of those documents.

Judge Cannon’s order pertained only to documents seized during the Aug. 8 FBI search and not to any documents that Mr. Trump had previously handed over to the government.

Justice Department lawyers likely spent Friday seeking to determine the scope and tone of their appeal, Ms. Levinson said. They could appeal the entire order, or focus more narrowly on the provisions related to the classified materials, which could let investigators move forward on aspects of the probe, she said.

Prosecutors could seek to put the special master’s work on hold while they appeal her ruling, or could ask for a narrow delay on the classified materials and proceed with the review of the other materials, experts said.

Judge Cannon gave Raymond J. Dearie, a longtime judge in federal court in Brooklyn, until Nov. 30 to complete work that former special masters described as potentially tedious and time-consuming. And given the classified status of some of the documents Mr. Dearie may review, he will likely need to work in a special, secure area to view them, Mr. Saltzburg said.

In her order, Judge Cannon told prosecutors to provide Mr. Trump’s legal team with copies of the nonclassified documents, and instructed Mr. Trump’s legal team to identify those materials it believes to be personal documents, privileged presidential records, or other presidential records. If the government disagrees with any characterizations, the special master is expected to review the dispute and make a recommendation for Judge Cannon’s determination.

He can ask for more evidence from both sides, and seek the guidance of the National Archives in making recommendations.

“It may feel like a long time to some,” said Todd Presnell, an attorney who has served as a special master. “But in this arena, that is a short amount of time. It can be a tedious, difficult task.”

Write to Sadie Gurman at sadie.gurman@wsj.com and Aruna Viswanatha at Aruna.Viswanatha@wsj.com