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This is exactly the reason why the 25th amendment should have been invoked for Biden, in that any question that the President is not indisputably in command of the powers of his office causes a constitutional crisis. There's a reason why the Vice President is temporarily sworn in when the President is put under anesthesia: even though it is highly unlikely he will die it A) ensures continuity of power and B) prevents mysterious commands issued from the surgery table.
That a cabal of staffers could usurp the power of the presidency should not even be in the realm of contemplatable, let alone allegeable.
The Democrats are taking the consequences of... whatever they did in Biden's tenure. It's up to them to demonstrate that the former president was compos mentis during such and such a date as they claim. Surely, remembering the past three months is not a extraordinary ask, is it? Or perhaps, in lieu of an extraordinary claim, the ex-president can write his own name in court.
Or perhaps drawing a clock would be more illustrative.
How does accessing the current mental faculties of Biden, whether satisfactory or not, prove anything about what they were like three months ago?
If he's old enough that a progress of months is enough to make meaningful differences in his cognition then he was not of sound mind to be president. A motivated actor (and Trump definitely is one) can hammer that wedge to say that all of Biden's acts and orders were not, in fact, issued by him, and thus the pardons are not pardons at all. They are frauds created by staffers without his knowledge.
Such an allegation is essentially unprovable, as you say. But so as long as the DoJ holds this opinion, things will get... interesting.
I feel obliged to note that this isn't necessarily the way it works. If he had a stroke between then and now, for instance, that's a sudden loss of brain function regardless of what that function was before the stroke. Hell, if he had a stroke before the use of the autopen affecting his motor control, that would explain why he couldn't sign his name without necessarily implying anything about his cognition.
Cognitive decline is not always gradual, and loss of motor control without cognitive decline is a thing (see: Stephen Hawking, who certainly wasn't a vegetable).
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I think if it comes to a court considering a prosecution for which a defendant has held up a seemingly-valid pardon, they are going to require the DOJ to prove this claim. If that happens, they are gonna lose -- since this is, as we all seem (?) to say, unprovable.
It would be a highly costly victory for the other side, though: having to, in public, defend the veracity of very unpopular and uniquely broad pardons by refusing to cooperate and invoking privilege.
Eh; they were already unpopular. And it would be individual defendants invoking them not big name dems.
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