Mitchell, a Boston Red Sox director, was hired by baseball commissioner Bud Selig to run the investigation into the use of performance-enhancing drugs in baseball.
Mitchell based part of his report on statements by McNamee, who later claimed the government told him he would be prosecuted if he didn't speak with Mitchell. Clemens sued McNamee in January, claiming his former trainer's statements were defamatory.
Emery said Thursday that because McNamee did not volunteer information about Clemens, but rather was "coerced" into giving it under threat of prosecution, his statements are lawfully "immune from any defamation."
Emery said that even though Mitchell was a private citizen representing a private entity -- the baseball commissioner's office -- McNamee's statements are protected because federal prosecutors were the ones who actually obtained them.
"It would be as if the federal prosecutors decided they wanted to put out a report and put McNamee in it," Emery said. "Just because they gave it to Time magazine to publish, that wouldn't mean that McNamee was engaging in defamation. They were the ones responsible for producing the McNamee information."
U.S. District Judge Keith Ellison had asked Emery and Ward to provide "statements from the prosecutors and investigators involved" by Nov. 18. Emery and Ward said in their motion that Parrella, a member of the BALCO prosecution team in San Francisco, told Emery by phone that he needed to get approval from supervisors. "Mr. Parrella indicated that he could not produce a statement by Nov. 18, 2008," the motion said. "He needs authority from supervisors before disclosing information from a criminal investigation and he has not yet determined the form in which he will respond."
Emery said they are awaiting a written response from Parrella that describes the circumstances of both McNamee's interview with prosecutors and his meeting with Mitchell.
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