Beg Pardon?

NEWS: Trump is mulling preemptive pardons for as many as 20 aides and associates before leaving office, frustrating Republicans who believe offering legal reprieves to his friends and family members could backfire.

w/ @anitakumar01 https://t.co/i4pTNZWmUq

— Andrew Desiderio (@AndrewDesiderio) December 4, 2020

I don't know if they will be or not, but pardons are only good for what has been done, not for what might be done after the date of the pardon.  That much I am sure of.  My expertise in Presidential pardon law is nil, but let's start with Laurence Tribe's remarks on a "self-pardon:"

“It doesn’t say “except the criminal laws.” It doesn’t say ‘except when he chooses to violate the criminal laws.’ Now, if it were true, as Donald Trump said in the little segment you played, that the president has the absolute power to grant himself a power of pardon, to grant himself a pardon — which would be an odd way for the framers to have put it, you grant things to other people — if he had the absolute power to grant himself a pardon, if he knew that throughout his presidency, and if all presidents knew it, what would follow is that presidents do not have to follow the law,” Tribe explained. “They can’t be, according to the Justice Department, indicted while they’re in office, and if at any time they could pardon themselves…if that were the case then the president would not be below the law, he’d be above it.”

“There would be no limit. Every president would know from the very moment — puts his hand on that Bible and takes the oath — that whatever he does, or she does, during the four-year term of that presidency, could not be criminally prosecuted, either during the presidency or ever in the future because the pardon would cover everything that president had done,” Tribe explained.

Obviously I added the emphasis there.  Now look at this analysis, from a federal judge commenting on the pardon of Michael Flynn, and what Judge Sullivan might do with that pardon:

“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” Walton continued. “Theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.” 

Again, my expertise in this area is nil, but I think it's fairly well settled law that pardons are retroactive only; they do not cover acts in the future, that is, after the date of the pardon.

The judge's coments raise another issue for me, that I don't know the answer to at all:  are pardons severable?  That is, if the pardon is overly broad, can the overreach of the pardon (as in extending it into the future, where it cannot go) be separated (severed) from the rest of the pardon, or is the pardon fatally flawed and void because it is unitary (i.e., not severable)?  I don't know the answer; I won't even hazard a guess.  But if pardons are unitary and not severable, Trump may find his pardons being cast aside.  My understanding is that the DOJ Pardon Office (where the greatest concentration of expertise on these issues would usually reside) has been bypassed as Trump has made pardons entirely a White House staff issue.  If there's a flaw in the Flynn pardon, that flaw may well be replicated as Trump tries to pardon his children and aides.

Because I doubt Judge Sullivan is going to hear arguments on that question before January 21, 2021, if he can help it.