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A thought on the indictment of Rick Perry

Patterico pretty well takes it apart, but I'd add a thought.

One of the two charges is violation of a statute which penalizes anyone who "misuses" "government property, services, personnel or any thing of value." Sounds to me like it's void for vagueness. "Misuses" is hardly clear; there are many uses of government property which some would say was "misuse" and others would say was a proper use. An is a veto government "property" or "any other thing of value"? No one can possess or transfer a veto.

There's a couple of Supreme Court cases relating to this, applying the federal mail fraud statutes, which punish any use of the mails as party of a scheme or artifice to defraud. Federal prosecutors sought to apply this is "theft of honest services," i.e., a scheme to deprive the public of honest services by a public official or a corporate executive. In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held the statute simply didn't allow for this. Congress then amended the statute to expressly provide that it did cover theft of honest services. In Skilling v. United
States, 130 S.Ct. 2896 (2010), this was challenged as void for vagueness. A majority of the Court held that the statute could be "saved" by a "narrowing construction," which construed it only to cover bribery and kickbacks, and not conflict of interest or anything else -- thus implicitly accepting that if broadly applied, the statute would indeed be void. At that, two Justices (Scalia and Thomas) said that the statute could not be saved, it was void for vagueness, period.

I'd think that the Texas statute is equally void. "Misuse" is no clearer than "honest," perhaps less so. We probably have a broader consensus on what is "dishonest" than on what is "misuse."