Proxy voting opens potential legal loophole for Trump

This is what a virtual pandemic impeachment looks like.

With President Trump’s fate at stake, dozens of House members cast their votes Wednesday by proxy, under special pandemic rules allowing them to offer their input through the use of a designated voter. In doing so, they may have given Mr. Trump a legal angle to challenge the move.

The House has been using virtual voting for months, including on coronavirus relief measures. But impeachment brings new constitutional questions, said Mark Strand, president of the Congressional Institute, a nonprofit focused on making Congress run better.

He said nobody has had standing to challenge the proxy process, but that could change.

“Is that person going to be Donald Trump? He could say, ‘Well, you shouldn’t be able to impeach me without having people vote in person.’ I don’t know,” Mr. Strand said.

Other congressional scholars and legal experts, though, said they believe the House is on safe ground.

“I don’t see why the manner of meeting or voting would be a problem. It is a piece of congressional business, to be conducted, as with all such business, in the manner each house thinks best,” said James A. Gardner, a law professor at the State University of New York at Buffalo.

To be sure, most lawmakers did show up in person during the 232-197 vote that made Mr. Trump the first president ever to be impeached twice.

Fifty-seven lawmakers had active proxies during the vote, though it appears only about 52 used them. About three-quarters were Democrats and the rest Republicans.

Ahead of Wednesday’s vote, Mr. Strand said using proxies for so momentous an occasion struck a wrong note.

“Whatever they do today is going to become a precedent for future presidents. So they should think long and hard, and they should take this very seriously, and they should do it by the Constitution, which requires in-person voting,” he said.

Democrats established the proxy voting process in May as it became clear that Congress needed to return to the Capitol even as the coronavirus was spreading.

Lawmakers who use the proxy process are required to file a notice turning over their voting power to a colleague who will be on the floor. That colleague casts the absent lawmaker’s vote by announcing it aloud during the vote.

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Republicans Who Voted To Remove Trump

Rep. Liz Cheney-WY
Rep. Herrera Beutler-WA
Rep. Katko-NY
Rep. Kinzinger-IL
Rep. Upton-MI
Rep. Newhouse-WA
Rep. Meijer-MI
Rep. Gonzalez-OH
Rep. Rice-SC
Rep. Valadao-CA