Hardin’s vigorous argument was a response to a motion by McNamee’s lawyer Richard Emery, asking a judge to dismiss the case or else move it to New York.

Emery had argued in part that federal agents and prosecutors investigating McNamee for drug distribution had forced McNamee to cooperate with Mitchell, therefore extending the privilege afforded to government cooperating witnesses.

Mitchell’s report was commissioned by Major League Baseball, and the Daily News has reported that some legal observers have questioned how a private corporation received such access to a witness in an active government investigation.

No legal system “would allow government agencies to somehow ‘deputize’ a private individual or entity such that any statements a person makes to the private entity would be covered by a privilege,” Hardin wrote.

“For a variety of reasons, extending the use of absolute privilege under these circumstances could be potentially dangerous and lead to abuse.”

Emery has predicted that a judge presiding over the case would ultimately have to rule on the issue of whether McNamee’s statements to Mitchell would be covered by the proffer agreement that gave McNamee qualified immunity in exchange for his cooperation with federal authorities.

Over the course of three interviews last year, McNamee told Mitchell that Clemens used steroids and human growth hormone. The feds sat in on those interviews, including some of the same agents and prosecutors who cracked open the BALCO doping ring in 2003.

The claims were published in the Mitchell Report in December, and became the basis not only of the defamation suit but also a series of dramatic congressional depositions and hearings.

Hardin elaborated on his prior arguments that McNamee had intentionally inflicted emotional distress on Clemens, and that Texas was the proper venue for the suit.

McNamee’s lawyer, Richard Emery, will now have an opportunity to reply to the filing before the matter goes before U.S. District Judge Keith P. Ellison for consideration.

“We will reply to their arguments and contend that it’s unfair and improper to drag McNamee to Texas, when the issue is really what McNamee said in New York to Mitchell under threat of prosecution,” Emery said.

Clemens sued McNamee for defamation Jan. 6, the night he appeared on 60 Minutes denying McNamee’s allegations. At that point, Clemens and McNamee were still preparing to testify before a congressional committee investigating the disputed findings of the Mitchell Report.

The defamation suit has been bruising for both men. Clemens has seen his claim to an unblemished reputation tested, and McNamee has racked up enormous legal bills he cannot pay (his lawyers claim in court filings that McNamee made only $3,000 in income in the first half of the year).

McNamee’s motion to dismiss, filed by Emery in Houston federal court on July 2, asked Judge Ellison to toss the lawsuit or move the case to New York because many potential witnesses - including Clemens’ former teammates Andy Pettite, Derek Jeter, Jason Giambi and Mariano Rivera - are Big Apple residents.

Other witnesses could include Yankee doctors and trainers, former Sen. George Mitchell and Angela Moyer, the former Manhattan bartender who The News reported had a relationship with the Rocket.

Emery asked the judge to schedule a hearing - one that could disrupt Pettitte’s season - to determine if the statute of limitations expired on Clemens’ claim that McNamee defamed him when he told Pettitte that Clemens had used performance-enhancing drugs.

An amended complaint filed by Hardin in May said that McNamee falsely told Pettitte in 1999 or 2000 that Clemens had used human growth hormone. The amended complaint also says McNamee falsely told Pettitte in 2003 or 2004 that Clemens had used steroids. The statute of limitations in a federal defamation case is one year.

The motion to dismiss says former Mets clubhouse attendant Kirk Radomski will testify that he sent performance-enhancing drugs to Clemens’ home, and that the bloody gauze, steroid bottles and needles McNamee turned over to federal investigators will test positive for Clemens’ DNA.