Why doesn't Rosenstein recuse himself from the Russia probe?

Or at least the obstruction of justice part of it.

Rosenstein appointed Mueller and, under the relevant order and incorporated regulations, supervises him.

Rosenstein was also centrally involved in James Comey’s firing.

[...]

[J]ust before Trump fired Comey, Trump and an aide drafted an “angry, meandering” termination letter to Comey at the president’s golf club in Bedminster, N.J. The Bedminster letter was never sent. But in a meeting in the Oval Office soon after it was drafted, Rosenstein “was given a copy of the original letter and agreed to write a separate memo for Mr. Trump about why Mr. Comey should be fired,” according to the New York Times.

[...]

Rosenstein’s memo was used as a pretext to fire Comey; Rosenstein knew that the president wanted to fire Comey; and he read the Bedminster draft before he wrote his own memorandum.

[...]

The Washington Post reported unequivocally that Mueller’s investigation includes “whether President Trump attempted to obstruct justice,” including, as a central issue, in his firing of Comey. Rosenstein was in the middle of that firing. He possesses information about the president’s beliefs and motives in firing Comey, and quite possibly a personal interest in how those beliefs and motives are construed, since he appeared to many to have been used by the president (and was reportedly very angry about it). Rosenstein thus would very likely be a fact witness in any obstruction inquiry in connection with the Comey firing. It is hard to understand why he did not have a conflict of interest the moment Mueller’s investigation turned to obstruction in the firing of Comey.

[...]

[The Times] story Thursday added two details that make it even harder to see why Rosenstein does not have a conflict. First, Schmidt reports that, contrary to White House claims, Trump’s Bedminster letter mentioned the Russia investigation in its first sentence and described it as “fabricated and politically motivated.” Since Rosenstein saw that letter before he wrote his memorandum—and perhaps even discussed the contents with the president or attorney general prior to drafting his own second memo—he knew that the president had the Russia investigation on his mind in wanting to fire Comey. He wrote his memorandum about Comey in light of this knowledge.

Second, after reporting that Attorney General Sessions “wanted one negative article a day in the news media about Mr. Comey” and that a Sessions staffer approached a Hill staffer about whether he or she was in possession of any “derogatory information” about Comey, a claim denied by the attorney general’s spokesperson, Schmidt [the Times reporter] added:

Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.

This suggests that Rosenstein had a more proactive role than has been previously believed in the firing of Comey. And it implies the possibility that he might have been involved in the effort to “dig up dirt” on Comey.

[...]

If the president abused his power in firing Comey due to the Russia investigation, Rosenstein appears to have knowingly contributed to it. I cannot fathom how, in this light, he remains the supervisor in charge of that investigation, since a reasonable person would question his impartiality in the matter.

One possibility is that Rosenstein has no conflict because Mueller is not actually investigating the president for obstruction.

[...]

Rosenstein’s non-recusal might, despite the many stories to the contrary, be evidence that Mueller is not in fact investigating whether Trump obstructed justice or otherwise violated the law in firing Comey.

  Lawfare blog

That would be hard to believe.

Moreover, Rosenstein has expressly stated that “if anything that I did winds up being relevant to his investigation then, as Director Mueller and I discussed, if there's a need from me to recuse I will.”

Perhaps Mr. Mueller has Mr. Rosenstein on the list as one of the last links to the obstruction case, and Mr. Rosenstein is either unaware of that or figures he'll hold out as long as he can, which would be until Mr. Mueller tells him he's "relevant".

A second possibility is that Mueller is investigating obstruction by the president and that, with respect to that issue, Rosenstein has in fact recused himself but not publicly announced it.

Odd, but more believable.

If so, then another Justice Department official, presumably Associate Attorney General Rachel Brand, would be supervising Mueller on the obstruction issue. I do not know if such a partial recusal is legally possible, since the appearance or reality of a conflict with respect to one element of the investigation might infect the appearance or reality of a conflict with respect to the entire investigation. Moreover, such a partial recusal, even if appropriate, would be politically controversial in the sense that many would make the “infection” charge to discredit the investigation. (It is also hard to see how news of the partial recusal would not have leaked.)

I'm with this right up until that parenthetical note. I don't believe the Mueller team leaks.

A third possibility is that Rosenstein is bending the rules a bit.

He bent the rules a bit already when he wrote an ass-covering memo for Trump's firing of Comey. And when he gave Congressional GOPers (and eventually one Democrat) information regarding the informant the FBI used early in the Trump campaign when they were trying to uncover whether the Russians were trying to interfere in the 2018 election.

With a president hostile to the investigation and the attorney general recused, Rosenstein (and Mueller) may feel that the situation is so fragile that everything possible must be done to avoid Rosenstein’s recusal, perhaps on the fear that a recusal would give the president ammunition to attack the entire investigation, or worse. If this is what is going on, then Rosenstein has surely obtained the appropriate authorizations from the appropriate Justice Department ethics unit. Such an authorization might satisfy any technical legal concern about a conflict of interest. But it would not satisfy the inevitable political concerns about such a conflict; indeed, it might fuel such attacks down the road in a way not helpful to the investigation.

Something here doesn’t make sense.

A lot of somethings about this administration don't make sense.

...but hey, do what you want...you will anyway.