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Send them to jail! That's the promise that could win the White House

A handcuffed Charles Keating, former head of Lincoln Savings & Loan, arrives for court appearance in Los Angeles, Oct. 15, 1990.
Sam Jones | AP
A handcuffed Charles Keating, former head of Lincoln Savings & Loan, arrives for court appearance in Los Angeles, Oct. 15, 1990.

Timing is everything in politics. You have to know which issues to talk about, and talk about them the right way and at just the right time to really cash in with the voters. This year has certainly provided presidential candidates Donald Trump and Hillary Clinton with dozens of issues to choose from, but an issue that's re-emerged in just the last two weeks provides both of them a uniquely equal chance to surge in this election. That issue is the renewed anger at CEOs, big banks, and Corporate America in general thanks to two separate hearings featuring bipartisan bashing of Wells Fargo CEO John Stumpf and Mylan Laboratories CEO Heather Bresch. The first candidate who taps into this anger and presents him or herself as someone who could make it right will gain a major late advantage in this contest. But there's one catch: no stand on this issue will resonate unless it includes the "J" word–jail.

A lot voters and pundits would usually be repulsed by a candidate going around promising to put people behind bars, you know, especially because presidents are not supposed to act as judge, jury, and jailer/executioner. But a long-simmering public anger at the banks that began with the housing collapse and TARP in 2008 has been re-ignited with the news that Wells Fargo was hurting its regular customers and blaming the fraud on low-level employees.

Anti-CEO sentiment is also aflame because of the Mylan EpiPen case, where the public is still having an especially hard time accepting the $600 price tag for an item that costs little to produce. Compound that with the fact that the EpiPen is often a life-or-death need for millions of children who suffer from allergies, and you have a perfect storm of everyone from financial journalists to carpooling moms calling for somebody's head. And it was more than a little noticeable that at both the Wells Fargo and Mylan hearings, both Democrats and Republicans piled on. Stumpf and Mylan CEO Heather Bresch seemed to have no friends on Capitol Hill after years of cozy relationships. Promising to crack down on the next "bad guy" CEO or bank is less politically risky than ever.

But why is promising to bring jail into the equation so important this time? The simple answer is that despite the big banking collapse and all the evidence of mortgage fraud, the public is keenly aware that the Obama administration is about to complete eight years without getting even one high level bank executive or CEO behind bars. This failure is a key reason for the rise in popularity for people like Senator Elizabeth Warren and Senator Bernie Sanders' strong presidential candidacy. Even conservative Republicans point to the lack of convictions as evidence of a major Obama administration failure and "crony capitalism." This kind of bipartisan frustration is rare, and it has everything an aspiring presidential candidate locked in a tight race needs.

Of course jailing white collar criminals is a lot easier said than done, especially CEOs. And even if they are convicted, it's not like they go to some hardcore state prison where every prisoner's life is often in danger. But don't underestimate the visual power of seeing a major banking executive in chains wearing the orange jumpsuit of a convict.

Anyone old enough to remember the video of former Lincoln Savings and Loan chief Charles Keating being led away in convict's attire can attest to that. But the great thing about elections is that no one expects the candidates to actually achieve what they promise while the campaign is still going on, they just expect them to try. Promising to jail the next Stumpf or Angelo Mozilo that comes along is easy, but it doesn't make it any less politically beneficial. If elected, the candidate who makes that promise would be under a lot of pressure to make good with a high profile conviction. But passing a newer and tougher law to make future convictions easier to achieve could serve as a decent alternative.

Both Trump and Clinton would be smart to make such a promise immediately, with the first candidate to do so getting a decided advantage. The wording of such a promise could actually be eerily the same for both Trump and Clinton. Clinton would have to tiptoe around the fact that the Obama administration never bagged a big name conviction, but simply by leaving the president's name out of it and decrying the fact that so far, "corporate and banking criminals have evaded full justice," (putting the onus on the crooks), would work. Trump would have far more freedom to blame President Obama, but for the best effect he would also have to predict that Clinton couldn't even make a valid promise to jail the same people who have donated so heavily and uniformly to her campaign. But other than those important differences, the key point of the winning message for both of them would be that promise–empty or not–to send someone to jail.

In the end, taking this kind of stand would take more guts than we've seen from our presidential candidates in the past. But it must be clear to at least one of the campaigns that last week's Congressional hearings have washed away almost all the serious negatives that would usually come along with brash promises to send American citizens to the slammer. Perhaps the deciding factor for which candidate chooses to take this stand will be which one of them wants to win it more.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.