I reluctantly agree with Pence's not invoking the 25th Amendment, purely on grounds of horrible precedent.
Don't get me wrong, if _I_ was in Pence's shoes, I'd be walking running the 25th Amendment (President incapable of duties of office) petition around.
But thankfully _I_ am NOT the Vice President.
7 days ago — "Pence said that the 25th Amendment was designed to address presidential incapacity or disability not “a means of punishment or usurpation."
Initially, I thought invoking the 25th Amendment inapposite. I changed my mind after I read John Feerick's analysis of the broad criteria justificative of invoking it.
Trump's insistent belief that the election was stolen and that he is the true winner is a delusion which is "an idiosyncratic belief or impression that is firmly maintained despite being contradicted by what is generally accepted as reality or rational argument, typically a symptom of mental disorder."
So it is plausible to argue that Trump's delusion is includable within "presidential incapacity or disability," which according to Pence are grounds supportive of invoking the 25th Amendment.
WikipediaJohn Feerick, the principal drafter of the amendment,[3]:xii,xx[4]:5[10] writes that Congress deliberately left the terms unable and inability undefined "since cases of inability could take various forms not neatly fitting into [a rigid] definition ... The debates surrounding the Twenty-fifth Amendment indicate that [those terms] are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties ..." [3]:112 A survey of scholarship on the amendment found
no specific threshold – medical or otherwise – for the "inability" contemplated in Section 4. The framers specifically rejected any definition of the term, prioritizing flexibility. Those implementing Section 4 should focus on whether – in an objective sense taking all of the circumstances into account – the President is "unable to discharge the powers and duties" of the office. The amendment does not require that any particular type or amount of evidence be submitted to determine that the President is unable to perform his duties. While the framers did imagine that medical evidence would be helpful to the determination of whether the President is unable, neither medical expertise nor diagnosis is required for a determination of inability ... To be sure, foremost in [the minds of the framers] was a physical or mental impairment. But the text of Section 4 sets forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies.[4]:7,20
Among potential examples of such unforeseen emergencies, legal scholars have listed kidnapping of the president and "political emergencies" such as impeachment. Traits such as unpopularity, incompetence, impeachable conduct, poor judgment, or laziness might not in and of themselves constitute inability, but should such traits "rise to a level where they prevented the President from carrying out his or her constitutional duties, they still might constitute an inability, even in the absence of a formal medical diagnosis." In addition, a president who already manifested disabling traits at the time he or she was elected is not thereby immunized from a declaration of inability.